The San Francisco jail’s policy of strip searching incoming inmates to control weapons and contraband coming into the jail is constitutional under Bell v. Wolfish. Bull v. City & County of San Francisco, 2010 U.S. App. LEXIS 2684 (9th Cir. February 9, 2010) (en banc) (6-5), panel opinion Bull v. City & County of San Francisco, 539 F.3d 1193 (9th Cir. 2008):
“A detention facility is a unique place fraught with serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence.” Bell v. Wolfish, 441 U.S. 520, 559 (1979). Indeed, “attempts to introduce drugs and other contraband into [prison] premises … is one of the most perplexing problems of prisons.” Hudson v. Palmer, 468 U.S. 517, 527 (1984); see Overton v. Bazzetta, 539 U.S. 126, 134 (2003) (“Drug smuggling and drug use in prison are intractable problems.”); Block v. Rutherford, 468 U.S. 576, 588-89 (1984) (“We can take judicial notice that the unauthorized use of narcotics is a problem that plagues virtually every penal and detention center in the country.”). San Francisco’s six county jails are no exception: They struggle with a serious, ongoing problem of drugs, weapons, and other contraband being smuggled into jail facilities. The record contains hundreds of pages of incident reports, indicating that between April 2000 and December 2003, searches of the San Francisco general jail population resulted in the discovery of 1,574 items of contraband, including 662 assorted controlled substance pills, 106 shanks and other weapons, 1 screwdriver, 17 jail-made handcuff keys, 42.88 grams of rock cocaine, 2.75 grams of powder cocaine, 6.70 grams of methamphetamine, 6.24 grams of tar heroine, 71.93 grams of marijuana, 4 ecstasy pills, 32 assorted pipes, 1 hypodermic needle, and 24 gallons of homemade alcohol known as “Pruno.” The presence of such contraband threatens the health and safety of inmates, corrections officers, and jail employees. The record contains reports of the death of an inmate housed in the general population from drugs obtained within the prison, and of one detainee who set her clothes on fire with a lighter smuggled into the cell, of another who mutilated himself with staples similarly secreted into the jail, and of a third who attempted suicide with razor-blades smuggled into the jail in his rectal cavity. The jail administrators have concluded that, based on their experience, “the greatest opportunity for the introduction of drugs and weapons into the jail occurs at the
point when an arrestee is received into the jail for booking and, thereafter, housing.” In light of this conclusion, Sheriff Hennessey developed and implemented a “Booking Searches” policy. This policy authorized officers to strip search an arrestee when any one of eleven conditions applied, including the condition at issue here, namely, when “[a] person [was] assigned a custody level by Classification and scheduled for custodial housing.”. . .
Applying the principles reviewed above, it is apparent that the scope, manner, and justification for San Francisco’s strip search policy was not meaningfully different from the scope, manner, and justification for the strip search policy in Bell. Similar to the challenged policy in Bell, the San Francisco strip search procedures governing the scope and manner of the searches, as detailed in the Sheriff’s Booking Searches policy, limited the searches to visual inspection and expressly prohibited tactile strip searches. See 441 U.S. at 558 n.39, 560. Moreover, the San Francisco procedures required officials to conduct strip searches in a professional manner and in a place that afforded privacy. Furthermore, the circumstances justifying the San Francisco strip search policy are weightier in this case than they were in Bell. The record reveals a pervasive and serious problem with contraband inside San Francisco’s jails, as well as numerous instances in which contraband was found during a search, indicating that arrestees’ use of body cavities as a method of smuggling drugs, weapons, and items used to escape custody is an immediate and troubling problem for San Francisco jail administrators. The record of smuggling in this case far exceeds the showing in Bell, where defendants “proved only one instance in the MCC’s short history where contraband was found during a body-cavity search.” Id. at 558.
. . .
In sum, because the circumstances before us are not meaningfully distinguishable from those presented in Bell, the balance between the need for the San Francisco strip search policy and “the invasion of personal rights that the search entails” must be resolved in favor of the jail system’s institutional concerns. Id. at 559. While strip searches are invasive and embarrassing, and while this type of security measure “instinctively gives us the most pause,” id. at 558, we must conclude that under Bell, San Francisco’s strip search policy was reasonable and therefore did not violate the class members’ Fourth Amendment rights.
The dissent notes that the plaintiffs were arrested for property crimes and briefly held and released, never going into general population.
The majority sweeps away twenty-five years of jurisprudence, giving jailors the unfettered right to conduct mandatory, routine, suspicionless body cavity searches on any citizen who may be arrested for minor offenses, such as violating a leash law or a traffic code, and who pose no credible risk for smuggling contraband into the jail. Under its reconfigured regime, the majority discards Bell’s requirement to balance the need for a search against individual privacy and instead blesses a uniform policy of performing body cavity searches on everyone arrested and designated for the general jail population, regardless of the triviality of the charge or the likelihood that the arrestee is hiding contraband. The rationale for this abrupt precedential departure is founded on quicksand. Indeed, the government’s entire argument is based on the logical fallacy cum hoc ergo propter hoc— happenstance implies causation. The government argues that contraband has been found in the San Francisco jails. Thus, the government reasons, individuals who are arrested must be smuggling contraband into the jail. Therefore, the government concludes it must body cavity search everyone who is arrested, even those who pose no risk of concealing contraband, much less of trying to smuggle contraband into the jail.
This reasoning finds no support from the record in this case. Although there is evidence of some arrestees attempting to conceal contraband during their arrest, there is not a single documented example of anyone doing so with the intent of smuggling contraband into the jail. More importantly, for our purposes, there is not a single example of anyone from the class defined by the district court who was found to possess contraband upon being strip searched. Not one.
Indeed, and ironically, the record shows that most of the individual plaintiffs who were body cavity searched were never actually placed in the general jail population at all. Because they were never housed with other detainees, these individuals posed absolutely no risk of “smuggling” contraband into the general jail population. They were body cavity searched anyway, simply because they were classified for potential placement in the general jail population.
See LATimes, SF Chronicle, Metropolitan News-Enterprise, Jurist.
